2d Cir: Employee can curse out his boss and his boss’s family on Facebook and keep his job.

I blogged about this case about two years ago (here), when it was pending before the National Labor Relations Board. In involves an employee who, on his work break, took out his iPhone, went on his personal Facebook page. Once on FB, the employee spewed about his boss, calling him a nasty MF, plus F his mother and his entire effing family. He ended the post with “Vote YES for the UNION!!!!!!!”

(Because, of course).

A co-worker, who was Facebook friends with the foul-mouthed employee, showed the post to HR. The company then investigated and fired the employee.

Using some confangled multi-factor test, the Board concluded that the speech was protected.

Bad — really bad, even — but, not quite bad enough.

On appeal, the Second Circuit Court of Appeals held here that company unlawfully fired the employee for his Facebook rant.

Why, you ask? For starters, the employee addressed working conditions and the upcoming election. There was also evidence that the employer tolerated profanity at work. But, here’s the money shot:

The “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible. We thus conclude…that the Board did not err in ruling that Perez’s Facebook post, although vulgar and inappropriate, was not so egregious as to exceed the NLRA’s protection. Nor was his Facebook post equivalent to a “public outburst” in the presence of customers and thus can reasonably be distinguished from other cases of “opprobrious conduct.”

I’d like to chalk this one up as an anomaly; bad facts making bad law. I’d really like to do that.

Hopefully, your workplace isn’t predominated with potty mouths. And, the “Vote YES for the UNION!!!!!!!” mention was a nice touch. Indeed, when the National Labor Relations Act intersects employee speech, it’s often without overt references to a union. Rather, you see griping about working conditions. Still, when employees get together either online or offline to discuss working conditions, that behavior is protected. In other words, you can’t fire them for that. However, the Act doesn’t protect an employee acting alone. Except when it does.

Here, the Second Circuit highlighted how Perez’s Facebook page was private. There’s no mention of other co-workers clicking “like,” let alone responding to the comments.

So, what about Perez’s comments is “concerted?” Maybe, implicit here is that Perez’s comments followed prior discussions with others about work; possibly encouraging others to chime in — even though he deleted them before others did.

Ultimately, these situations can become very fact specific and may require careful analysis and consideration. Instead of “ready, fire, aim,” before disciplining an employee for something said online, it’s definitely “ready, aim, fire.”

CONTRIBUTOR:

Eric B. Meyer

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